Category Archives: Preparedness

SB 2078 Requires Requires More Details in School District Disaster Planning

Texas legislation would require more specific details be added to a School District Disaster Plan and allow for the TEA to notify communities if their school districts don’t meet the disaster planning standard.

Texas SB 2078 currently working its way through the Texas House, essentially requires more detailed planning to be included into the School District’s Multi-Hazard Emergency Operations Plan (“MEOP”).

The biggest change is the addition of six requirements into the MEOP establishes for only school districts:

#1: The Chain of Command/Line of Succession Identification;

#2: 2 scenario specific response plans, with more that can be designated by the Texas School Safety Center at Texas State University;

#3: Portable building safety

#4: a parent/guardian communication plan

#5: statement on amount per student spent on school/district safety

#6: identification of the safety and security committee.

The interesting part is the statement on amount spent per student on school/district safety. The legislative history doesn’t currently suggest a reason why. It can be assumed that this is intended to be a marker for the community to see how their tax dollars are being spent.

The accountability and enforcement mechanism to this bill is essentially public shaming. The new Tex. Education Code §37.108(f) would allow the Texas Education Agency to post online those who fail to submit a MEOP, submit an MEOP that doesn’t meet standards, or fail a safety and security audit.

Disaster Planning for the Legal Profession

As disasters seem to be becoming more foreseeable, what areas should the legal community start looking towards to prepare themselves for the professional ethics delima.

The following is an excerpt from the forthcoming publication of “Operation Disaster Defender: A Multi-Disciplinary Approach to Preserving Access to Justice and Client Property Through Disaster Preparedness” set to publish in the Western Michigan Cooley Journal of Practical and Clinical Law in May 2018.

Though no method will guarantee a lawyer’s ability to safeguard client property during a disaster, both self assessed and accredited programs recommend or imply that a lawyer should consider several common areas while developing an emergency action plan. These areas include: (1) planning, (2) facilities, (3) communication, and (4) insurance.

First, at the outset of representation, a lawyer should consider including a provision in the client engagement letter detailing how the client’s property will be handled during a disaster or emergency situation. [1] This can range anywhere from a highly detailed manual or a brief few paragraphs that outline each parties’ duties and responsibilities.

Second, he or she should consider storing client property off site with a reputable fiduciary organization that focuses on safeguarding client property either online or in a secure storage facility. [2] Many times theses organizations have personnel, systems, and expertise dedicated to ensuring the survival of the property during a disaster.

Third, a lawyer should consider contacting clients to arrange for them to pick up his or her property temporarily during a forecasted disaster, especially if it is not immediately needed for his or her cases. [3] Though, conceptually, this practice might run afoul of the model rule’s if the client lacks the ability to store the property during a disaster themselves.

Finally, he or she should review insurance policies and determine whether the right type of insurance policy has been purchased at the right amount for the client’s property. [4] This is a good practice not only at work, but at home. Many times, individuals will buy insurance and forget to review it at least annually to ensure adequate coverage.

Ultimately, developing an emergency action plan focuses on reducing the number of questions a lawyer needs to answer when time counts. Answering these questions well in advance of a disaster will also allow the lawyer to find the best solutions to fit his unique situation. However, the issue with self assessed standards is that there is no confirmation of the actual accomplishment of preparedness objectives before a disaster strikes.

References:

[1] Mark L. Tuft, Techno Ethics: Practicing Law in Harm’s Way, 23 GP Solo Disaster & Recovery (2006), http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/2006_dec_technoethics.html (last visited Mar. 4, 2016). On March 5, 2016 a search across both Lexis Advanced and Westlaw Next produced no cases or situations where lawyers faced disciplinary or civil liability for their lack of preparation for a disaster.

CMS Increases Hospital Emergency Preparedness Requirements

The Center for Medicaid and Medicare released a final rule in September 2016 that would require increased preparedness at hospitals accepting Medicaid/Medicare payments.

In September 2016, the Center for Medicaid and Medicare Services released an update to the requirement for hospitals accepting payments from CMS to improve their disaster and emergency preparedness with new standards.

Specifically, the updated rule (impacting 42 CFR 402-494) will allow for a bit more flexibility in the planning and exercises at a hospital. For example, facilities would be allowed to omit certain planning requirements based upon who they serve (i.e. day-time only would not be required to have a substance plan that covers a 24-hour clock). That and there would be a bit more flexibility in choosing what types of exercises they could use to meet the annual requirements.

Texas Notice: HazMat Emergency Preparedness Sub-Grant Application

TDEM has published the notice on HMEP sub grants on September 19, 2016. The deadline to respond to the RFA is October 17, 2016.

On September 30th, the Texas Division of Emergency Management (“TDEM”) published the Request for Applications (“RFA”) notice for the Hazard Mitigation Emergency Preparedness (“HMEP”) grant program in the Texas Register. HMEP gives funds for the Local Emergency Planning Committees (“LEPC”) for furthering work in hazardous materials transportation emergency planning. This grant is through the U.S. Department of Transpiration, and is an 80% cost share program. Only LEPC’s may apply.

SEC Proposes Business Continuity Rules

The Security and Exchange Commission (“SEC”) has issued a request for comments on it’s proposed rules requiring Investment Advisors to prepare and maintain Business Continuity and Transition Planning. Over the past few years, the SEC has noticed a disparity among Investment Advisors in their Business Continuity planning. Some have very robust programs, while others do not and often face interruptions in their operations. With these new rules, the SEC is looking to change all that.

The SEC reasons that 15 USC § 80b6 (“Prohibited Transactions by Investment Advisors”) and the adviser’s fiduciary duty makes an adviser’s representation of a client tantamount to fraud, if they have not taken reasonable steps to develop and maintain a Business Continuity Plan. Many other areas of the finical industry require that their regulated parties have Business Continuity Plans. In fact, the Financial Regulatory Authority (“FINRA”), Commodity Futures Trading Commission (“CFTC”) require their regulated parties to maintain Business Continuity Plans. The North American Securities Administrator Association (“NASAA”) has even published a model rule that requires such Business Continuity Plans for Investment Advisors in adopting states. So bottom line, this has been starting to develop for some time.

There are two rules that are being proposed (one amended and one added). Essentially, §275.204-2 is being amended to add verbiage for Business Continuity Planning and the timeframe records need to be maintained for. The whole new section (which was previously reserved for expansion after that section was repealed) is §275.205(4)-4. Here is what that section currently looks like:

(a) Prohibition. If you are an investment adviser registered or required to be registered under section 203 of the Act (15 U.S.C. 80b–3), it shall be unlawful within the meaning of section 206 of the Act (15. U.S.C. 80b– 6) for you to provide investment advice to your clients unless you:

(1) Business continuity and transition plan. Adopt and implement a written business continuity and transition plan; and

(2) Annual review. Review, no less frequently than annually, the adequacy of the business continuity and transition plan and the effectiveness of its implementation.

(b) Content of business continuity and transition plan.

(1) For purposes of this section, the term business continuity and transition plan means policies and procedures reasonably designed to address operational and other risks related to a significant disruption in the investment adviser’s operations, including policies and procedures concerning:

(i) Business continuity after a significant business disruption; and

(ii) Business transition in the event the investment adviser is unable to continue providing investment advisory services to clients.

(2) The content of a business continuity and transition plan shall be based upon risks associated with the adviser’s operations and shall include policies and procedures designed to minimize material service disruptions, including policies and procedures that address the following:

(i) Maintenance of critical operations and systems, and the protection, backup, and recovery of data, including client records;

(iii) Communications with clients, employees, service providers, and regulators;

(iv) Identification and assessment of third-party services critical to the operation of the adviser; and

(v) Plan of transition that accounts for the possible winding down of the investment adviser’s business or the transition of the investment adviser’s business to others in the event the investment adviser is unable to continue providing investment advisory services, that includes the following:

(B) Policies and procedures facilitating the prompt generation of any client-specific information necessary to transition each client account;

(C) Information regarding the corporate governance structure of the adviser;

(D) Identification of any material financial resources available to the adviser; and

(E) An assessment of the applicable law and contractual obligations governing the adviser and its clients, including pooled investment vehicles, implicated by the adviser’s transition.

In addition, the SEC provides a very in-depth reasoning and analysis of what they are seeking to do. Even more, they have specific questions they want to get feedback from the field on centered around what the impacts of a regulation like this would be.

FEMA Wants Stakeholder Input on NIMS

FEMA is working on an update to the NIMS documents and wants your thoughts!

FEMA is working on an update (what they are calling a “refresh”) of the National Incident Management System (“NIMS”). NIMS was last reviewed in 2004 and 2008, incorporating lessons learned, best practices, national policy updates that occurred between publishing. Part of the development of new governmental policies is the input from stakeholders. I know wherever I have been we’ve had practitioners with great ideas and thoughts of how to make programs better; this is the chance to be heard.

Most significant to the NIMS update is the introduction of Center Management System (“CMS”) guidance that helps provide a common structure and activation scheme for operations and coordination centers. Though its not mandatory as part of preparedness grant programs. However as we all know with most things in the government, once something is introduced it’s usually a matter of time before it becomes required.

FEMA is hosting a series of Webinars to discuss the proposed changes and provide information how to give feedback. Here is a list of the dates and times of each:

Emergency Preparedness Sales Tax Holiday

The 2016 Sales Tax Holiday for Emergency Preparedness Supplies will happen in Texas from April 23-25, 2016.

Did you know that Texas has a sales tax holiday specifically for Emergency Preparedness Supplies? It does! It is designed to mirror the School Supplies Tax Holiday that has been in effect for many years. However, this hasn’t always been the case.

State Senator Juan “Chuy” Hinojosa from McAllen, Texas authored the bill in March 2015 and was passed in June 2015 by signature of the Governor. A review of the legislative history of SB 904 (the bill that then turned into Tex. Tax §151.3565) shows a very easy path with relatively no opposition to the bill.

Since 2016 will be the first ever “Emergency Preparation Supplies Sales Tax Holiday” there might be some confusion on what exactly is tax free from 12:01 am on Saturday, April 23, and ending at midnight on Monday, April 25, 2016. If you are interested in reading the full statute, you can find what is covered at Tex. Tax Code § 151.3565(b) (West 2016). The great part about this whole process is that–like the School Supplies Sales Tax Holiday–you don’t need to show an exemption form to be exempted from sales tax and there’s no limit to the number of items you can purchase! Keep in mind though, if there is shipping, handling or any other charges on the item when it is purchased, that is considered part of the sales price.

Here’s the list:

Portable Generators that are sales priced at $3,000 or less and used for light, communications, and/or perishable foods in the event of a power outage (Tex. Tax Code § 151.3565(b)(1)).

Storm Protection Devices, that are”manufactured, rated, and marketed specifically to prevent damage to a glazed or non-glazed opening during a storm” sales priced less than $300 (Tex. Tax Code § 151.3565(b)(2)(A)).

Pot and Preparedness: Are there issues with Marijuana Legalization?

As states and tribes legalize marijuana, are there any problems that emergency managers face? Regardless of personal/political opinions, are there tertiary impacts we in the profession should be thinking and advising our political leaders about?

As states and tribes legalize marijuana, emergency managers are faced problem of controlling the impact of a disaster without the assistance of federal programs that are heavily relied upon. The Emergency Management Cycle is the standardized method emergency managers use to understand how to approach their job. Each of the cycle’s four phases present a unique problem for consideration concerning marijuana legalization. This article is one in a series of four articles related to marijuana legalization and potential issues related to Emergency Management. This article asks whether or not legalized marijuana grow facilities need to coordinate a pre-plan with their local fire department to better avoid possible tort liability.

Note: This article does not state a position on the legalization of marijuana and merely identifies potential issues for emergency management as it is legalized at state and tribal levels. This article should not be considered legal advice. Consult with an attorney

Background: Marijuana grow facilities often pose significant hazards to firefighters. These hazards stem from complex ventilation, facility layout, and electrical wiring (often violating codes). Despite training, these hazards become nearly impossible to avoid given the existing complexities of a structure fire. This is compounded by the mixture of THC and chemicals used in cultivation giving emitted smoke a sickening effect, rather than giving a “high”.

Hypothetical: The current legislation to legalize Marijuana in Wisconsin is approved. A year later there is a fire at an indoor grow facility in Madison. The Madison Fire Department and HAZMAT respond. The facility is partially saved; however, four fire fighters are seriously injured and two of the apparatus’ (fire truck) were damaged and attributed to code violations at the indoor grow facility. Will the firefighter’s and fire department separate civil claims against the owner succeed?

Answer: While the firefighters may likely succeed the department may have issues. The common law firefighter rule generally bars a firefighter’s negligence claim. However, in Clark v. Corby, the Wisconsin Supreme Court found a valid negligence per se claim based the violation of local housing ordinances and hidden hazards. 249 N.W.2d 567 (Wis. 1977); accord Peak v. Cent. Tank Coatings, Inc., 606 F.App’x 891 (10th Cir. 2015). Here, the hidden hazard exception will likely allow the firefighters to succeed. So long as the strict guidelines are followed, Wisconsin statute allows agencies seek reimbursement from a property owner whose negligence caused a HAZMAT incident for actual, reasonable, and necessary expenses included involving the release or potential release of HAZMAT. The issue comes in with the tedious processing requirements. If not strictly adhered to, the agency might forfeit reimbursement.

Next Step: Though sometimes annoying, it is imperative for legal marijuana growers to comply with all building and zoning ordinances at all times. Further, facility owners should work with the local fire department and allow a “pre-plan” for the department’s emergency response to the facility.

Legal Ethics: Safeguarding Client Property During Disasters

Considering legal ethics: How far must a lawyer go to safeguard property entrusted to them in the event of a disaster? Are lawyers ethically required to have a plan or just take precautions as circumstances dictate?

When considering legal ethics: How far must a lawyer go to safeguard property entrusted to them by a client or third party during a disaster? The American Bar Association’s (“ABA”) Model Rule of Professional Conduct (“Model Rules”) 1.15 requires a lawyer to safeguard client funds and other property entrusted to the lawyer during representation of the client. Many states’ ethics rules provide great detail on a lawyer’s duty to safeguard fund; however, they typically provide little guidance on safeguarding tangible property. Very few cases and ethics opinion speak directly on safeguarding client property during a disaster, collectively they indicate that a lawyer should develop an emergency action plan for handling client’s property—including case files—in the event of a disaster. This article will analyzes a lawyer’s ethical duties under the ABA’s Model Rules and the American Law Institute’s Restatement of the Law (3d) of the Law Governing Lawyers (“Restatement”). Issues relating to possible civil or criminal liability will not be discussed.

What is a Disaster?

A disaster is an emergency situation that exceeds a community’s ability to control and either temporarily or permanently disrupts the community’s sense of normality.[1] Disasters are classified as either a technological or natural disaster. Technological disasters are man-made events, usually associated with either intentional or negligent conduct of others.[2] Examples of technological disasters include (i) war, (ii) civil unrest and rioting, (iii) terrorism, (iv) major transportation accidents, (v) arson, and (vi) structure fires. Natural disasters are extreme meteorological or geological events that cause damage, disruption, and casualties usually leaving a community unable to function normally without outside assistance”.[3] Examples of natural disasters include: (i) tornados, (ii) hurricanes, (iii) earthquakes, (iv) landslides, and (v) flooding. Over 350 major disaster declarations have been issued since 2010, usually for natural disasters.[4]

What is a lawyer required to do in order to properly safeguard client property?

Comment 1 to Model Rule 1.15 states “a lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances”.[5] Restatement §44 similarly describes the lawyer’s duty to take “reasonable steps to safeguard the funds or property.”[6] Comment e to §44 further elaborates by stating several factors that should be weighed in evaluating the reasonableness of the steps needs to take in order to adequately safeguard the property: (i) the circumstances, such as the property’s: market value, special value to the client or third-person, or difficulty to replace (if known to the lawyer), (ii) the property’s transferability or convertibility, (iii) the property’s susceptibility to loss or other damage, (iv) the reasonable customs of lawyers in the community, (v) and the availability and cost of alternative methods of safekeeping.[7] A lawyer may modify their obligation with a client’s written informed consent on terms serving “some purpose other than the convenience or profit of the lawyer”.[8]

As each state adopted language consistent with the Restatement or Model Rule’s approach to safeguarding client property, they focused heavily on safeguarding funds and less on other property. Some ethics Opinions, such as Florida Bar’s 72-37, provide some insight in expecting a lawyer to “act prudently” while safeguarding client property.[9] Mississippi Bar’s Ethics Opinion 254 even states, “good common sense should provide answers to most questions that arise”.[10] Theoretically, safeguarding of a client’s tangible personal property even includes client files, which are also considered to be property of the client.[11]

Courts and disciplinary boards take the circumstances surrounding a disaster into consideration when determining the appropriateness of disciplinary action.[12][13] However, since a lawyer is required to hold property with the care of a professional fiduciary, it is reasonable to conclude that a lawyer having notice impending disaster can only meet their ethical obligation by preparation and implementation of an emergency action plan.[14] Additionally, failure to create or implement an emergency action plan that leaves client files and property in a “vulnerable, unsecured, law office” can also run a risk of violating Model Rule 1.6 (confidentiality).[15] Ultimately, a lawyer charged with safeguarding client and third-party property before a disaster is in the best position to avoid ethical violations during a disaster.

What should an attorney do to meet their ethical obligation?

Though no method will guarantee a lawyer’s ability to safeguard client property during a disaster, there are four basic areas a lawyer should consider while developing their emergency action plan. First, at the outset of representation consider including a provision in the client engagement letter detailing how the client’s property will be handled during a disaster or emergency situation.[16] Second, consider storing client property off site with a reputable fiduciary organization that focus on safeguarding client property either online or in a secure storage facility.[17][18] Third, consider contacting clients to arrange for them to pickup their property temporarily during a forecasted disaster, especially if it is not immediately needed for their case.[19] Finally, review insurance policies and determine whether the right type of insurance policy has been purchased at the right amount for the client’s property.[20] Ultimately, development an emergency action plan focuses on reducing the number of questions a lawyer needs to answer when time counts. Answer these questions well in advance of a disaster will also allow the lawyer to find the best solutions to fit their unique situation.

Conclusion

Given that disasters are becoming increasingly more common, it would be imprudent for lawyers to regard disasters as simply, “acts of God”.[21] It is very safe to assume that rules of professional conduct in the legal profession will not be suspended regardless of the circumstances a disaster may impose upon a community.[22] However, taking the time to develop an emergency action plan will reduce a lawyer’s risk of violating ethical standards while safeguarding client property and confidentiality during an emergency or disaster.

Sources

[1] Perry, Ronald. What Is a Disaster?: New Answers to Old Questions, 25-28. Philadelphia, PA, 2005.

[2] Pappas, Fay. “Note: Gulf Coast Blowout: How the BP oil spill is corroding Communities and what Attorneys & Policymakers must do to stop it.” Univ. of Fl. Journal of Law and Pub. Pol. 22 (2011): 229.

Kuwait Hosts International Conference on Law and Disasters

The Kuwait Red Crescent Society hosted a Middle East and North Africa consultative meeting on law and disasters in June 2015.

The Kuwait Red Cresent Society (KRCS) hosted a Middle East and North Africa Conference on Law and Disasters. Dr. Hilal Al-Sayer (Chairman of the KRCS) opened the conference by stressing the importance in preparedness, especially legal preparedness, in order to reduce the impacts of natural hazards on the region. He went on to explained that any crisis management policy must have defined standards in order to be effective.

In 2012, the KRCS hosted the inaugural workshop on Crisis Law, with the goal of enhancing legal readiness for disasters of the nation. Since that time, the KRCS and the International Federation of Red Cross/Red Crescent (IFRC) has provided technical support during and between conferences to the region.

The conference on June 10th, 2015 is a prelude to the IFRC’s 32nd International Conference scheduled for December 2015 in Geneva, Switzerland.